State marriage amendments

To the Kansas constitution

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In this essay, and others, "SSM" means "same-sex
marriage."

Text of the Senate Resolution:

SENATE CONCURRENT RESOLUTION No. 1601:
A PROPOSITION to amend article 15 of the constitution of the state of
Kansas by adding a new section thereto, concerning marriage. Be it
resolved by the Legislature of the State of Kansas, two-thirds of the
members elected (or appointed) and qualified to the Senate and two
thirds of the members elected (or appointed) and qualified to the House
of Representatives concurring therein:

Section 1. The following proposition to amend the
constitution of the state of Kansas shall be submitted to the
qualified electors of the state for their approval or rejection:
Article 15 of the constitution of the state of Kansas is amended by
adding a new section thereto to read as follows:
''? 16. Marriage. (a) The marriage contract is to be considered in
law as a civil contract. Marriage shall be constituted by one man
and one woman only. All other marriages are declared to be contrary
to the public policy of this state and are void.
''(b) No relationship, other than a marriage, shall be recognized by
the state as entitling the parties to the rights or incidents of
marriage.''

Section 2. The following statement shall be printed on the
ballot with the amendment as a whole:
''Explanatory statement. There is currently no constitutional
provision regarding marriage. There is a statute, enacted by the
legislature, that defines marriage as a civil contract between two
persons who are of opposite
sex and declares all other marriages to be contrary to public policy
and
void.''
''A vote for this proposition would amend the Kansas constitution to
incorporate into it the definition of marriage as a civil contract
between
one man and one woman only and the declaration that any other
marriage is
contrary to public policy and void. The proposed constitutional
amendment
also would prohibit the state from recognizing any other legal
relationship
that would entitle the parties in the relationship to the rights or
incidents of marriage.''
''A vote against this proposition would not amend the constitution,
in which
case the current statute that defines marriage would remain
unchanged but
could be amended by future acts of the legislature or modified by
judicial
interpretation.''

Section 3. This resolution, if approved by two-thirds of the members
elected
(or appointed) and qualified to the Senate, and two-thirds of the
members
elected (or appointed) and qualified to the House of
Representatives, shall
be entered on the journals, together with the yeas and nays. The
secretary
of state shall cause this resolution to be published as provided by
law and
shall cause the proposed amendment to be submitted to the electors
of the
state at the general election in April in the year 2005 unless a
special
election is called at a sooner date by concurrent resolution of the
legislature, in which case it shall be submitted to the electors of
the
state at the special election.

(Emphasis was not in the original).

This proposed amendment cleared the Kansas Senate and House, and was
scheduled for a vote by the general public on 2005-APR-05.

Implications of the amendment to the institution of marriage:

In 1867 marriage was defined as a union between one man and one woman in
Kansas legislation. It remained unchanged to the present day. However, that law
could be altered at any time by the legislature, either on their on initiative,
or after having been ordered to by the courts. In order to make both of these
impossible, an amendment was proposed to the Kansas Constitution. Before SSM
could be approved in the future, the Constitution would have to be re-amended to
allow SSM.

After the amendment was approved on 2005-APR-05, part A of the amendment
confirmed that marriage is defined as a union of one woman and one man in the
Constitution. This did not change the institution of marriage in the state. It
merely reinforced the existing legislation and made it impossible for the
legislature to readily change the institution of marriage. It was on this basis
that the amendment was promoted to the public.

Implications of the amendment to non-married couples in Kansas:

Little attention was paid to Part B of the amendment, shown in bold
above.

Paragraph B simply states that other types of relationships might be
recognized by the state. But in recognizing them, the state cannot give them
access "to the rights or incidents of marriage." There are typically a
few hundred of these rights, obligations, and benefits automatically given to
married couples when their marriage is registered. A literal interpretation of
Paragraph B would mean that common-law couples could not enjoy any of
these benefits. Part B implies that loving, committed couples who are living
together, planning for the future, creating a family, etc. who do not happen to
be married are denied access to these rights. This applies to every same-sex
committed couple in the state, and their children, if any. It also applies to
every opposite-sex committed couple and their children.

Some of the hundreds of "rights and incidents" that they may be denied
are:

Medical power of attorney.

Access to protection from abuse orders.

Special child-care arrangements

The right to visit your partner in the hospital.

The right to make medical decisions concerning treatment of their
partner.

Employee health insurance benefits,

etc. 1

A literal interpretation of the Amendment would affect hundreds of thousands
of citizens of Kansas, and even more important, large numbers of children.
Strictly interpreted, it would change the legal status of a common-law couple to
that of two roommates who are simply occupying the same house or apartment.

Similar amendments in other states have already started to impact loving,
committed but unmarried couples:

Utah: Unmarried heterosexual victims of domestic violence are
being denied "Protection from Abuse" orders to victims of domestic
violence. 2

Michigan: The state has cancelled provisions of a previously
negotiated contract with SEIU -- the Michigan Public Employees union. They
no longer provide health care benefits to partners of state workers unless
they are married.

Ohio: Unmarried heterosexual couples are having problems
exercising medical powers of attorney. The similar constitutional amendment
in that state has been interpreted to bar any person from having medical
power of attorney for another unless they are a relative or a married
spouse.

The scope of actions against non-married couples is undoubtedly going to
expand within each of the states, and from state to state as more jurisdictions
pass marriage amendments.

Promotion of the amendment:

From the media reports, it seems that the amendment was being promoted
primarily as an anti-SSM measure. For example, meetings held on 2005-APR-03 were
reported by the KansasCity Star as follows:

In a Prairie Village church, gay activist Mel White roused a crowd when
he encouraged voters to stop the swell of states passing constitutional
amendments to ban gay marriage. "Kansas, you can do it," White said
Sunday, referring to the ballot issue before voters Tuesday. "You can
stop it here. You have a chance to say to the rest of the nation and to a
horrified world: 'It won't go here in Kansas'."

But at Memorial Hall in Kansas City, Kan., a crowd rose to its feet as
the Rev. Bill Owens said God's word had been dismissed enough in today's
world. "We want to tell the forces of evil today who are hell-bent on
taking God out of everything that we will not stand by any longer. ?
Homosexuality is a sin, and we say it for what it is. We stand on the word
of God together."

Results of the vote:

70% of the voters in Kansas voted to amend the Kansas constitution to ban
same-sex marriage and strip rights, privileges, and obligations from common-law
opposite-sex couples. It was passed with a surplus of 170,000 votes. It will
likely take effect on 2005-APR-29. Kansas became the 18th state to pass an
amendment of this type. Mississippi's amendment passed by 86%; Oklahoma by 76%
and Missouri by 71%. Similar amendments will be on the ballot during 2006 in
Alabama, South Dakota and Tennessee.

Reactions:

Joe Wright, senior pastor at Wichita's Central Christian Church was a
leading proponent of the amendment. He said: "We felt all along that
Kansans would do the right thing, so we're not surprised how they voted. We
are just thrilled with the overwhelming numbers." He is reported as
saying that amendment supporters may now turn their attention to access to
restricting gambling, abolishing the teaching of
evolution in the public schools, and restricting
abortion access.

Bruce Ney, chairman of Kansans for Fairness, a coalition of gay
and civil-rights groups said: "One thing I can promise you is that the
voices of fairness in this state will not be silenced. We will not stand by
and let thousands of our neighbors, friends and relatives live as
second-class citizens."

Some of those who opposed the amendment plan to challenge it in the
courts. 6

Thomas Witt, field organizer for Equality Kansas -- a group that
favors SSM -- said it will be up to the courts to interpret the second part of
the amendment. He said: "The people who push this complain about activist
un-elected judges, but the only people who are going to be able to figure this
out now are un-elected judges. We don't know what's going to happen to Paragraph
B, but we do know that it's basically going to give license to any petty
official who doesn't like gay families to discriminate."

Was the attack on unmarried couples intentional?

Paragraph A seems to have been the part of the amendment that received the
vast majority of public attention by those supporting and opposing it. But
Paragraph B -- the section that strips rights away from both opposite-sex and
same-sex common-law couples -- will probably have the greatest impacts on
families in Kansas. It may result in a profound change to the state culture. It
may cause major hardship and a loss of protections for common-law parents and
their children. It all depends upon the interpretation of Paragraph B by the
courts.

There are two obvious explanations why Paragraph B was worded as it is:

Legislators may simply have been careless in the framing of the
amendment. They may have been so focused on attacking SSM and preserving
opposite-sex marriage that they did not consider what effect Paragraph B
would have on the common-law relationships in the state.

Legislators may have had both a pubic and a hidden agenda. They may have
intentionally designed the amendment to have two effects:

Keeping same-sex committed couples at a second-class citizen status
and prevent them from receiving any of the special privileges reserved
for opposite-sex married couples, and

Stripping rights, privileges and benefits from opposite-sex common
law couples and their children so that they will be so uncertain and
insecure that they will be forced to marry in order to gain protection
for their families and the status of first-class citizens.

It is unlikely that the former is the case, because Paragraph B seems a near
copy of the original wording of the Federal
Marriage Amendment. It is difficult to understand how "B" could not have
been intentionally written to have major affects on non-married couples in the
state.